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Document C:2023:286:FULL
Official Journal of the European Union, C 286, 14 August 2023
Official Journal of the European Union, C 286, 14 August 2023
Official Journal of the European Union, C 286, 14 August 2023
Display all documents published in this Official Journal
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ISSN 1977-091X |
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Official Journal of the European Union |
C 286 |
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English edition |
Information and Notices |
Volume 66 |
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Contents |
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IV Notices |
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NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
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Court of Justice of the European Union |
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2023/C 286/01 |
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General Court |
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2023/C 286/02 |
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IV Notices
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
Court of Justice of the European Union
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/1 |
Last publications of the Court of Justice of the European Union in the Official Journal of the European Union
(2023/C 286/01)
Last publication
Past publications
These texts are available on:
EUR-Lex: http://eur-lex.europa.eu
General Court
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/2 |
Criteria for the assignment of cases to Chambers
(2023/C 286/02)
At its plenum on 12 July 2023, the General Court laid down, in accordance with Article 25 of the Rules of Procedure, the criteria for the assignment of cases to Chambers.
These are as follows:
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Cases shall be assigned to Chambers of three Judges as soon as possible after the application has been lodged and without prejudice to any subsequent application of Article 28 of the Rules of Procedure. |
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Civil service cases, that is, cases that stem from the employment relationship between the European Union and its staff, shall be allocated to the four Chambers specifically designated to that effect in the decision assigning Judges to Chambers, on a rotational basis, in accordance with the date on which those cases are registered at the Registry. |
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Cases concerning intellectual property rights referred to in Title IV of the Rules of Procedure shall be allocated to the six Chambers specifically designated to that effect in the decision assigning Judges to Chambers, on a rotational basis, in accordance with the date on which those cases are registered at the Registry. |
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Cases other than those referred to in paragraphs 2 and 3 shall be allocated to the Chambers in turn, in accordance with the date on which they are registered at the Registry, following two separate rotas:
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The President of the General Court may derogate from the rotas outlined in paragraphs 2, 3 and 4 in order to take account of a connection between certain cases or with a view to ensuring an even spread of the workload. |
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The criteria for the assignment of cases to Chambers set out above shall be laid down for the period from 12 July 2023 to 31 August 2025. |
V Announcements
COURT PROCEEDINGS
Court of Justice
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/3 |
Judgment of the Court (Second Chamber) of 29 June 2023 — European Commission v Ireland
(Case C-444/21) (1)
(Failure of a Member State to fulfil obligations - Environment - Directive 92/43/EEC - Conservation of natural habitats and of wild fauna and flora - Special areas of conservation - Atlantic biogeographical region - Article 4(4) and Article 6(1) - Failure to designate special areas of conservation and to set conservation objectives - Absence or insufficiency of conservation measures)
(2023/C 286/03)
Language of the case: English
Parties
Applicant: European Commission (represented by: C. Hermes and M. Noll-Ehlers, acting as Agents)
Defendant: Ireland (represented by: M. Browne, A. Joyce, M. Lane and J. Quaney, acting as Agents, and by E. Barrington, Senior Counsel, A. Carroll, Barrister-at-Law, and M. Gray, Senior Counsel)
Intervener in support of the defendant: Federal Republic of Germany (represented by J. Möller and A. Hoesch, acting as Agents)
Operative part of the judgment
The Court:
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Declares that, by failing to designate as special areas of conservation, as soon as possible and within six years at most, 217 of the 423 sites of Community importance which were included on the list established by Commission Decision 2004/813/EC of 7 December 2004 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Atlantic biogeographical region, updated by Commission Decision 2008/23/EC of 12 November 2007 adopting, pursuant to Council Directive 92/43/EEC, a first updated list of sites of Community importance for the Atlantic biogeographical region and by Commission Decision 2009/96/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Atlantic biogeographical region, Ireland has failed to fulfil its obligations under Article 4(4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013; |
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Declares that, by failing to define detailed site-specific conservation objectives for 140 of the 423 sites of Community importance referred to in point 1 of the operative part, Ireland has failed to fulfil its obligations under Article 4(4) of Directive 92/43, as amended by Directive 2013/17; |
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Declares that, by failing to adopt the necessary conservation measures which correspond to the ecological requirements of the natural habitat types referred to in Annex I and the species referred to in Annex II to Directive 92/43, as amended by Directive 2013/17, present on the 423 sites of Community importance referred to in point 1 of the operative part, Ireland has failed to fulfil its obligations under Article 6(1) of Directive 92/43, as amended; |
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Dismisses the action as to the remainder; |
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Orders Ireland to bear its own costs and to pay those incurred by the European Commission; |
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Orders the Federal Republic of Germany to bear its own costs. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/4 |
Judgment of the Court (Third Chamber) of 29 June 2023 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Verband Sozialer Wettbewerb eV v famila-Handelsmarkt Kiel GmbH & Co. KG
(Case C-543/21, (1) Verband Sozialer Wettbewerb (Containers on which a deposit is charged))
(Reference for a preliminary ruling - Consumer protection - Indication of the prices of products - Directive 98/6/EC - Article 2(a) - Concept of ‘selling price’ - Products sold in returnable containers - National legislation requiring the amount of the deposit to be indicated separately from the selling price)
(2023/C 286/04)
Language of the case: German
Referring court
Bundesgerichtshof
Parties to the main proceedings
Applicant: Verband Sozialer Wettbewerb eV
Defendant: famila-Handelsmarkt Kiel GmbH & Co. KG
Operative part of the judgment
Article 2(a) of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers
must be interpreted as meaning that the concept of ‘selling price’ laid down in that provision does not include the amount of the deposit payable by the consumer when purchasing goods in returnable containers.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/5 |
Judgment of the Court (First Chamber) of 29 June 2023 (request for a preliminary ruling from the High Court — Ireland) — X v International Protection Appeals Tribunal, Minister for Justice and Equality, Ireland, Attorney General
(Case C-756/21, (1) International Protection Appeals Tribunal and Others (Attack in Pakistan))
(Reference for a preliminary ruling - Common policy on asylum and subsidiary protection - Directive 2004/83/EC - Minimum standards for granting refugee status or subsidiary protection status - Second sentence of Article 4(1) - Cooperation of the Member State with the applicant to assess the relevant elements of the application - Scope - General credibility of the applicant - Article 4(5)(e) - Evaluation criteria - Common procedures for the grant of international protection - Directive 2005/85/EC - Appropriate examination - Article 8(2) and (3) - Judicial review - Article 39 - Scope - Procedural autonomy of the Member States - Principle of effectiveness - Reasonable time to take a decision - Article 23(2) and Article 39(4) - Consequences of any breach)
(2023/C 286/05)
Language of the case: English
Referring court
High Court (Ireland)
Parties to the main proceedings
Applicant: X
Defendants: International Protection Appeals Tribunal, Minister for Justice and Equality, Ireland, Attorney General,
Operative part of the judgment
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Article 4(1) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:
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EU law, in particular Article 23(2) and Article 39(4) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, must be interpreted as meaning that:
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Article 4(5)(e) of Directive 2004/83 must be interpreted as meaning that a false statement, contained in the initial application for international protection, which was explained and withdrawn by the applicant for asylum at the first available opportunity, is not capable, by itself, of preventing the establishment of the applicant’s general credibility, for the purposes of that provision. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/6 |
Judgment of the Court (Tenth Chamber) of 29 June 2023 — TUIfly GmbH v European Commission
(Case C-763/21 P) (1)
(Appeal - State aid - Measures put into effect by the Republic of Austria for Klagenfurt airport, Ryanair and other airlines using that airport - Decision declaring the aid measures partially incompatible with the internal market - Article 107(1) TFEU - Private investor in a market economy - Ex ante incremental profitability analysis - Long-term profitability of the airport - Applicability - Article 107(3)(c) TFEU - Aid to facilitate the development of certain economic activities or of certain economic areas - Relevant assessment criterion for determining compatibility with the internal market - Profitability of the new air routes)
(2023/C 286/06)
Language of the case: German
Parties
Appellant: TUIfly GmbH (represented by: L. Giesberts, D and J. Westarp, Rechtsanwälte)
Other party to the proceedings: European Commission (represented by: K. Blanck, A. Bouchagiar and J. Ringborg, Agents)
Operative part of the judgment
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The appeal is dismissed; |
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TUIfly GmbH is ordered to pay the costs. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/7 |
Judgment of the Court (Second Chamber) of 29 June 2023 (requests for a preliminary ruling from the Hessischer Verwaltungsgerichtshof (C-829/21) and the Verwaltungsgericht Darmstadt (C-129/22) — Germany) — TE, RU, represented for legal purposes by TE (C-829/21), EF (C-129/22) v Stadt Frankfurt am Main (C-829/21), Stadt Offenbach am Main (C-129/22)
(Joined Cases C-829/21 and C-129/22, (1) Stadt Frankfurt am Main (Renewal of a residence permit in the second Member State) and Others)
(Reference for a preliminary ruling - Immigration policy - Status of third-country nationals who are long-term residents - Directive 2003/109/EC - Second subparagraph of Article 9(4), Article 14(1), second subparagraph of Article 15(4), Article 19(2) and Article 22 - Right of third-country nationals to long-term resident status in a Member State - Grant by the first Member State of a ‘long-term resident’s EU residence permit’ of unlimited duration - Third-country national absent from the territory of the first Member State for a period of more than six years - Consequent loss of entitlement to long-term resident status - Application for renewal of a residence permit issued by the second Member State pursuant to the provisions of Chapter III of Directive 2003/109/EC - Application rejected by the second Member State because of the loss of that entitlement - Conditions)
(2023/C 286/07)
Language of the case: German
Referring courts
Hessischer Verwaltungsgerichtshof, Verwaltungsgericht Darmstadt
Parties to the main proceedings
Applicants: TE, RU, represented for legal purposes by TE (C-829/21), EF (C-129/22)
Defendants Stadt Frankfurt am Main (C-829/21), Stadt Offenbach am Main (C-129/22)
Operative part of the judgment
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Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011, and in particular Article 22(1)(b) thereof, must be interpreted as meaning that a Member State can refuse to renew a residence permit which it granted to a third-country national pursuant to the provisions of Chapter III of that directive, as amended, on the ground, referred to in the second subparagraph of Article 9(4) of that directive, as amended, that, having been absent for a period of more than six years from the territory of the Member State that granted him or her long-term resident status, and the latter Member State not having made use of the option provided for in the third subparagraph of Article 9(4) of that directive, as amended, that third-country national is no longer entitled to maintain that status in the latter Member State, provided that the six-year period ended at the latest on the date on which the application for renewal of that permit was lodged and the third-country national had previously been invited to produce proof of his or her presence (if any) in that territory during that period. |
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The second subparagraph of Article 9(4) and Article 22(1)(b) of Directive 2003/109, as amended by Directive 2011/51, must be interpreted as meaning that those provisions are duly transposed into national law by a second Member State which implements them by means of two separate provisions where the first provision sets out the ground leading to loss of the right to long-term resident status referred to in the second subparagraph of Article 9(4) of that directive, as amended, and the second provides, without referring specifically to one of the grounds for loss of that right referred to in Article 9 of the directive, as amended, that a residence permit under the provisions of Chapter III of that directive, as amended, must be revoked if the third-country national concerned is no longer entitled to maintain his or her long-term resident status in the Member State that issued it. |
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The second subparagraph of Article 15(4) of Directive 2003/109, as amended by Directive 2011/51, must be interpreted as meaning that the Member State in which the third-country national has applied for the grant of a residence permit pursuant to the provisions of Chapter III of that directive, as amended, or for the renewal of such a permit cannot reject that application on the ground that the third-country national did not include with the application documentary evidence establishing that he or she has appropriate accommodation, if that Member State has not implemented that provision. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/8 |
Judgment of the Court (Eighth Chamber) of 29 June 2023 (request for a preliminary ruling from the Naczelny Sąd Administracyjny — Poland) — Dyrektor Krajowej Informacji Skarbowej v C. sp. z o.o., in liquidation
(Case C-108/22, (1) Dyrektor Krajowej Informacji Skarbowej (VAT — Hotel services consolidator))
(Reference for a preliminary ruling - Common system of value added tax (VAT) - Directive 2006/112/EC - Special scheme for travel agents - Scope - Consolidator of accommodation services which purchases such services on its own behalf and resells them to other professionals without ancillary services)
(2023/C 286/08)
Language of the case: Polish
Referring court
Naczelny Sąd Administracyjny
Parties to the main proceedings
Applicant: Dyrektor Krajowej Informacji Skarbowej
Defendant: C. sp. z o.o., in liquidation
Operative part of the judgment
Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax
must be interpreted as meaning that the service provided by a taxable person, which consists in purchasing accommodation services from other taxable persons and reselling them to other economic operators, is covered by the special value added tax scheme applicable to travel agents, even though those services are not accompanied by ancillary services.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/9 |
Judgment of the Court (Third Chamber) of 29 June 2023 (request for a preliminary ruling from the Tribunal da Relação de Lisboa — Portugal) — Super Bock Bebidas, SA, AN, BQ v Autoridade da Concorrência
(Case C-211/22, (1) Super Bock Bebidas)
(Reference for a preliminary ruling - Competition - Agreements, decisions and concerted practices - Article 101 TFEU - Vertical agreements - Minimum resale prices fixed by a supplier to its distributors - Concept of ‘restriction of competition by object’ - Concept of ‘agreement’ - Proof of a concurrence of wills between the supplier and its distributors - Practice covering almost the entire territory of a Member State - Effect on trade between Member States - Regulation (EC) No 2790/1999 and Regulation (EU) No 330/2010 - Hardcore restriction)
(2023/C 286/09)
Language of the case: Portuguese
Referring court
Tribunal da Relação de Lisboa
Parties to the main proceedings
Applicants: Super Bock Bebidas, SA, AN, BQ
Defendant: Autoridade da Concorrência
Operative part of the judgment
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1. |
Article 101(1) TFEU must be interpreted as meaning that the finding that a vertical agreement fixing minimum resale prices entails a ‘restriction of competition by object’ may only be made after having determined that that agreement presents a sufficient degree of harm to competition, taking into account the nature of its terms, the objectives that it seeks to attain and all of the factors that characterise the economic and legal context of which it forms part. |
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Article 101(1) TFEU must be interpreted as meaning that there is an ‘agreement’, within the meaning of that article, where a supplier imposes on its distributors minimum resale prices of the products that it markets, if the imposition of those prices by the supplier and compliance with them by the distributors reflects the expression of the concurrence of wills of those parties. That concurrence of wills may be shown from the terms of the distribution contract at issue, where it contains an express invitation to comply with minimum resale prices or authorises, at the very least, the supplier to impose those prices, as well as from the conduct of the parties and, in particular, from any explicit or tacit acquiescence on the part of the distributors to an invitation to comply with minimum resale prices. |
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Article 101 TFEU, read together with the principle of effectiveness must be interpreted as meaning that the existence of an ‘agreement’, within the meaning of that article, between a supplier and its distributors, may be established not only by means of direct evidence, but also on the basis of objective and consistent indicia from which the existence of such an agreement may be inferred. |
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Article 101(1) TFEU must be interpreted as meaning that the fact that a vertical agreement fixing minimum resale prices covers almost the entirety, but not all, of the territory of a Member State does not prevent that agreement from being capable of affecting trade between Member States. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/10 |
Judgment of the Court (Sixth Chamber) of 29 June 2023 — European Commission v Portuguese Republic
(Case C-220/22) (1)
(Failure of a Member State to fulfil obligations - Environment - Directive 2008/50/EC - Ambient air quality - Systematic and persistent exceedance of the annual limit value for nitrogen dioxide (ΝΟ2) - Appropriate measures - As short an exceedance period as possible)
(2023/C 286/10)
Language of the case: Portuguese
Parties
Applicant: European Commission (represented by: I. Melo Sampaio and M. Noll-Ehlers, acting as Agents)
Defendant: Portuguese Republic (represented by: H. Almeida, P. Barros da Costa and J. Reis Silva, acting as Agents)
Operative part of the judgment
The Court:
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Declares that
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Orders the Portuguese Republic to pay the costs. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/10 |
Judgment of the Court (Tenth Chamber) of 29 June 2023 (request for a preliminary ruling from the Cour d’appel de Liège — Belgium) — Cabot Plastics Belgium SA v État belge
(Case C-232/22, (1) Cabot Plastics Belgium)
(Reference for a preliminary ruling - Value added tax (VAT) - Directive 2006/112/EC - Article 44 - Place of supply of services - Implementing Regulation (EU) No 282/2011 - Article 11(1) - Provision of services - Point of reference for tax purposes - Concept of ‘fixed establishment’ - Suitable structure in terms of human and technical resources - Ability to receive and use the services for the fixed establishment’s own needs - Provision of tolling services and ancillary services - Exclusive contractual undertaking between a company providing services in a Member State and the company receiving those services established in a third State - Legally independent companies)
(2023/C 286/11)
Language of the case: French
Referring court
Cour d’appel de Liège
Parties to the main proceedings
Applicant: Cabot Plastics Belgium SA
Defendant: État belge
Operative part of the judgment
Article 44 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2008/8/EC of 12 February 2008, and Article 11 of Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112,
must be interpreted as meaning that a taxable person receiving services, whose business is established outside the European Union, does not have a fixed establishment in the Member State in which the provider of the services concerned — which is legally independent from that recipient — is established, where that recipient does not have a suitable structure in terms of human and technical resources capable of constituting that fixed establishment, even where the taxable person providing the services provides to that taxable person receiving services, pursuant to an exclusive contractual undertaking, tolling services and a series of ancillary or additional services, contributing to the business of that taxable person receiving services in that Member State.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/11 |
Judgment of the Court (Ninth Chamber) of 29 June 2023 — Airoldi Metalli SpA v European Commission
(Case C-467/22 P) (1)
(Appeal - Dumping - Imports of aluminium extrusions originating in the People’s Republic of China - Definitive anti-dumping duty - Action for annulment - Locus standi - Fourth paragraph of Article 263 TFEU - Condition that the measure must be of individual concern to the applicant - Regulatory act not entailing implementing measures)
(2023/C 286/12)
Language of the case: English
Parties
Appellant: Airoldi Metalli SpA (represented by: M. Campa, M. Pirovano, D. Rovetta, V. Villante, avvocati, and P. Gjørtler, advokat)
Other party to the proceedings: European Commission (represented by: G. Luengo and P. Němečková, acting as Agents)
Operative part of the judgment
The Court:
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Dismisses the appeal; |
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Orders Airoldi Metalli SpA to bear its own costs and to pay those incurred by the European Commission. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/12 |
Judgment of the Court (Fifth Chamber) of 29 June 2023 (requests for a preliminary ruling from the Conseil d’État — France) — Association interprofessionnelle des fruits et légumes frais (Interfel) v Ministre de l’Agriculture et de la Souveraineté alimentaire
(Joined Cases C-501/22 to C-504/22, (1) Interfel and Others)
(Reference for a preliminary ruling - Agriculture and fisheries - Common organisation of the markets - Regulation (EU) No 1308/2013 - Article 164(1) and (4) - Marketing standards - Extension of an inter-trade agreement - Agreement providing for stricter rules than European Union rules)
(2023/C 286/13)
Language of the case: French
Referring court
Conseil d’État
Parties to the main proceedings
Applicant: Association interprofessionnelle des fruits et légumes frais (Interfel)
Defendant: Ministre de l’Agriculture et de la Souveraineté alimentaire
Operative part of the judgment
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1. |
Article 164 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 must be interpreted as meaning that the fixing, by means of agreement, decision or concerted practice agreed on within a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation, of harvesting dates or marketing dates for an agricultural product falls under the application of that article. |
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Article 164(1) and (4) of Regulation No 1308/2013 must be interpreted as meaning that a Member State may, at the request of a recognised producer organisation, a recognised association of producer organisations or a recognised interbranch organisation operating in a specific economic area or areas of that Member State and considered to be representative of the production of or trade in, or processing of, a given product, make binding some of the agreements, decisions or concerted practices agreed within that producer organisation, association of producer organisations or interbranch organisation on other operators acting in those economic areas who do not belong to that producer organisation, association of producer organisations or interbranch organisation, where the rules laid down in those agreements, decisions or concerted practices, which concern one or more of the aims listed in points (a) and (c) to (n) of paragraph 4 of that article, are stricter than those laid down in European Union rules or in standards adopted by the United Nations Economic Commission for Europe (UNECE). |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/13 |
Order of the Court (Seventh Chamber) of 18 April 2023 (request for a preliminary ruling from Curtea de Apel Alba Iulia — Romania) — Vantage Logistics SRL v Administraţia Judeţeană a Finanţelor Publice Alba, Auto Help Alba SRL, Banca Transilvania SA, BRD — Groupe Société Générale SA, SC Croma SRL, SC Polaris M.Holding, SC Elit România Piese Auto Originale SRL
(Case C-200/22, (1) Vantage Logistics)
(Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court of Justice - Judicial cooperation in civil matters - Insolvency proceedings - Restructuring plan - Directive (EU) 2019/1023 - Applicability ratione temporis and ratione materiae - Article 17 of the Charter of Fundamental Rights of the European Union - Clear lack of jurisdiction of the Court)
(2023/C 286/14)
Language of the case: Romanian
Referring court
Curtea de Apel Alba Iulia
Parties to the main proceedings
Applicant: Vantage Logistics SRL
Defendants: Administraţia Judeţeană a Finanţelor Publice Alba, Auto Help Alba SRL, Banca Transilvania SA, BRD — Groupe Société Générale SA, SC Croma SRL, SC Polaris M.Holding, SC Elit România Piese Auto Originale SRL
Interveners: SC Nedo Auto Service SRL, CH Insolvency IPURL, acting as insolvency administrator for SC Nedo Auto Service SRL
Operative part of the order
The Court of Justice of the European Union clearly lacks jurisdiction to answer the question referred for a preliminary ruling by the Curtea de Apel Alba Iulia (Court of Appeal, Alba Iulia, Romania), by the decision of 22 February 2022.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/13 |
Order of the Court (Tenth Chamber) of 17 April 2023 (request for a preliminary ruling from the Commissione tributaria regionale per il Friuli Venezia Giulia — Italy) — Ferriere Nord SpA, SIAT — Società Italiana Acciai Trafilati SpA, Acciaierie di Verona SpA v Autorità Garante della Concorrenza e del Mercato (AGCM), Agenzia delle entrate — Riscossione
(Case C-560/22, (1) Ferriere Nord and Others)
(Reference for a preliminary ruling - Article 53(2) of the Rules of Procedure of the Court of Justice - National competition authorities - Imposition of a contribution to finance those authorities - Lack of connection to EU law - Manifest lack of jurisdiction of the Court - Lack of sufficient information - Manifest inadmissibility)
(2023/C 286/15)
Language of the case: Italian
Referring court
Commissione tributaria regionale per il Friuli Venezia Giulia
Parties to the main proceedings
Appellants: Ferriere Nord SpA, SIAT — Società Italiana Acciai Trafilati SpA, Acciaierie di Verona SpA
Respondents: Autorità Garante della Concorrenza e del Mercato (AGCM), Agenzia delle entrate — Riscossione
Operative part of the order
The request for a preliminary ruling made by the Commissione tributaria regionale per il Friuli Venezia Giulia (Regional Tax Court, Friuli Venezia Giulia, Italy), by decision of 30 June 2022, is manifestly inadmissible.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/14 |
Order of the Court (Eighth Chamber) of 26 April 2023 (request for a preliminary ruling from the Förvaltningsrätten i Göteborg — Sweden) — A.L. v Migrationsverket
(Case C-629/22, (1) Migrationsverket)
(Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Immigration policy - Directive 2008/115/EC - Common standards and procedures in Member States for returning illegally staying third-country nationals - Article 6(2) - Return decision accompanied by an entry ban of three years’ duration - Third-country national holding a valid residence permit issued by another Member State - Failure by the national police authority to permit that national to go to the territory of that other Member State before it adopts that return decision in respect of that national)
(2023/C 286/16)
Language of the case: Swedish
Referring court
Förvaltningsrätten i Göteborg
Parties to the main proceedings
Applicant: A.L.
Defendant: Migrationsverket
Operative part of the order
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1. |
Article 6(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as meaning that the competent authorities of a Member State are required to permit a third-country national staying illegally on the territory of that Member State who holds a valid residence permit or other authorisation offering a right to stay issued by another Member State to go to that other Member State before they adopt, if the circumstances so require, a return decision in respect of such a national, even though those authorities consider it likely that that national will not comply with a request to go to that other Member State. |
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2. |
Article 6(2) of the Directive 2008/115 must be interpreted as meaning that in so far as it requires Member States to permit third-country nationals staying illegally on their territory to go to the Member State which issued them with a valid residence permit or other authorisation offering a right to stay before those Member States adopt, if the circumstances so require, a return decision in respect of such nationals, that provision has direct effect and may accordingly be relied on by individuals before the national courts. |
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3. |
Article 6(2) of Directive 2008/115 must be interpreted as meaning that where, contrary to that provision, a Member State does not permit a third-country national staying illegally on its territory to go immediately to the Member State which issued him or her with a valid residence permit or other authorisation offering a right to stay before it adopts a return decision in respect of that national, the competent national authorities, including national courts hearing an appeal against that return decision and the accompanying entry ban, are required to take all necessary measures to remedy a national authority’s failure to fulfil obligations arising from that provision. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/15 |
Order of the Court (Seventh Chamber) of 27 June 2023 (request for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Finalgarve — Sociedade de Promoção Imobiliária e Turística SA v Ministério do Planeamento e das Infraesruturas
(Case C-24/23, (1) Finalgarve)
(Reference for a preliminary ruling - Article 53(2) and Article 94 of the Rules of Procedure of the Court of Justice - Requirement to set out the legal context of the dispute in the main proceedings and the reasons justifying the need for a reply to the questions referred - Lack of sufficient information - Manifest inadmissibility)
(2023/C 286/17)
Language of the case: Portuguese
Referring court
Supremo Tribunal Administrativo
Parties to the main proceedings
Appellant: Finalgarve — Sociedade de Promoção Imobiliária e Turística SA
Respondent: Ministério do Planeamento e das Infraesruturas
Operative part of the order
The request for a preliminary ruling made by the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), by decision of 15 December 2022, is manifestly inadmissible.
(1) Date lodged: 18.1.2023.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/15 |
Appeal brought on 2 March 2023 by Vialto Consulting Kft. against the judgment of the General Court (Seventh Chamber) delivered on 21 December 2022 in Case T-537/18, Vialto Consulting Kft. v Commission
(Case C-130/23 P)
(2023/C 286/18)
Language of the case: Greek
Parties
Appellant: Vialto Consulting Kft. (represented by: S. Paliou and A. Skoulikis, dikigoroi)
Other party to the proceedings: European Commission
Form of order sought
The appellant claims that the Court should:
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— |
set aside the judgment of the General Court of 21 December 2022 in Case T-537/18; (1) |
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— |
order the Commission to pay the costs. |
Grounds of appeal and main arguments
In support of its appeal, the appellant puts forward three grounds:
First, the appellant claims that the judgment under appeal is vitiated by an error of law and distortion of the facts in relation to the publication of the exclusion of the appellant on the Commission’s website; the General Court held that the publication of the exclusion on the Commission’s website was proportionate, although the reasoning given by the Commission in connection with that publication was neither specific nor distinct from the reasoning given in connection with the exclusion, despite this being required under Article 106(16) of Regulation No 966/2012. (2)
Second, the appellant claims that the judgment under appeal is vitiated by an error of law in relation to failure to comply with the requirement to supply information under Article 106(16) of Regulation No 966/2012. The appellant argues that the General Court erred in law in so far as it found that the failure to mention, in the publication of the exclusion, that no final decision or final administrative decision had been made, even though it is required under Article 106(16) of Regulation No 966/2012, is not a breach of an essential procedural requirement and does not affect the legal or factual situation of the appellant.
Third, the appellant claims that the judgment under appeal is vitiated by an error of law in relation to the rejection of the claim for compensation. Bearing in mind that the appellant claims that the General Court’s finding that there was no breach of the principle of proportionality as far as concerns the publication of the exclusion of the appellant on the Commission’s website is vitiated by an error of law and must be set aside, it is also appropriate to set aside the findings of the judgment under appeal by which the General Court rejected the appellant’s claim for compensation on the ground that no unlawfulness on the part of the Commission had been established.
(1) ECLI:EU:T:2022:852.
(2) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/16 |
Request for a preliminary ruling from the Cour d’appel d’Amiens (France) lodged on 27 March 2023 — Air France SA v M. L., the spouse of G, X. G., C. G., R. G, L. G.
(Case C-194/23, Air France)
(2023/C 286/19)
Language of the case: French
Referring court
Cour d’appel d’Amiens
Parties to the main proceedings
Appellant: Air France SA
Respondents: M. L., the spouse of G, X. G, C. G., R. G, L. G.
Questions referred
|
1. |
Must the concept of ‘directly connecting flight’ referred to in Article 2(h) of Regulation No 261/2004 (1) be interpreted as meaning that the flights having been the subject of a single booking is a necessary condition of its existence or merely one indication among others, so that, where separate bookings were made, the national courts can examine other factors capable of characterising a set of flights? |
|
2. |
If the concept of ‘directly connecting flight’ may be applied where separate bookings were made, must that concept be interpreted as meaning that the conditions of the stopover as in the present case, lasting 19 hours with one night booked in a hotel outside the airport, are of such a kind as to preclude a set of flights? |
|
3. |
If the concept of ‘directly connecting flight’ must be precluded, must the concept of ‘further compensation’ referred to in Article 12(1) of Regulation No 261/2004 be interpreted as meaning that it includes compensation for transport costs which no longer serve any purpose, which cannot be reimbursed on the basis of Article 8 of that regulation? |
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4. |
Must the concept of ‘further compensation’ referred to in Article 12(1) of Regulation No 261/2004 be interpreted as meaning that it covers all the damage resulting from the breach of contract, without being constrained by the limitations laid down in national law, like foreseeability of the damage in French law? |
(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/17 |
Request for a preliminary ruling from the Rechtbank Amsterdam (Netherlands) lodged on 24 April 2023 — Booking.com BV, Booking.com (Deutschland) GmbH v 25hours Hotel Company Berlin GmbH and Others
(Case C-264/23, Booking.com and Booking.com (Germany))
(2023/C 286/20)
Language of the case: Dutch
Referring court
Rechtbank Amsterdam
Parties to the main proceedings
Applicants: Booking.com BV, Booking.com (Deutschland) GmbH
Defendants: 25hours Hotel Company Berlin GmbH, Aletto Kudamm GmbH, Air-Hotel Wartburg Tagungs- & Sporthotel GmbH, Andel’s Berlin Hotelbetriebs GmbH, Angleterre Hotel GmbH & Co. KG, Atrium Hotelgesellschaft mbH, Azimut Hotelbetrieb Köln GmbH & Co. KG, Barcelo Cologne GmbH, Business Hotels GmbH, Cocoon München GmbH, DJC Operations GmbH, Dorint GmbH, Eleazar Novum GmbH, Empire Riverside Hotel GmbH & Co. KG, Explorer Hotel Fischen GmbH & Co. KG, Explorer Hotel Nesselwang GmbH & Co. KG, Explorer Hotel Schönau GmbH & Co. KG, Fleming’s Hotel Management und Servicegesellschaft mbH & Co. KG, G. Stürzer GmbH Hotelbetriebe, Hotel Bellevue Dresden Betriebs GmbH, Hotel Europäischer Hof W.A.L. Berk GmbH & Co KG, Hotel Hafen Hamburg. Wilhelm Bartels GmbH & Co. KG, Hotel John F GmbH, Hotel Obermühle GmbH, Hotel Onyx GmbH, Hotel Rubin GmbH, Hotel Victoria Betriebs- und Verwaltungs GmbH, Hotel Wallis GmbH, i31 Hotel GmbH, IntercityHotel GmbH, ISA Group GmbH, Kur-Cafe Hotel Allgäu GmbH, Lindner Hotels AG, M Privathotels GmbH & Co. KG, Maritim Hotelgesellschaft mbH, MEININGER Shared Services GmbH, Oranien Hotelbetriebs GmbH, Platzl Hotel Inselkammer KG, prize Deutschland GmbH, Relexa Hotel GmbH, SANA BERLIN HOTEL GmbH, SavFra Hotelbesitz GmbH, Scandic Hotels Deutschland GmbH, Schlossgarten Hotelgesellschaft mbH, Seaside Hotels GmbH & Co. KG, SHK Hotel Betriebsgesellschaft mbH, Steigenberger Hotels GmbH, Sunflower Management GmbH & Co. KG, The Mandala Hotel GmbH, The Mandala Suites GmbH, THR Hotel am Alexanderplatz Berlin Betriebs- und Management GmbH, THR III Berlin Prager-Platz Hotelbetriebs- und Beteiligungsgesellschaft mbH, THR München Konferenz und Event Hotelbetriebs- und Management GmbH, THR Rhein/Main Hotelbetriebs- und Beteiligungs-GmbH, THR XI Berlin Hotelbetriebs- und Beteiligungsgesellschaft mbH, THR XXX Hotelbetriebs- und Beteiligungs-GmbH, Upstalsboom Hotel + Freizeit GmbH & Co. KG, VI VADI HOTEL Betriebsgesellschaft mbH & Co. KG, Weissbach Hotelbetriebsgesellschaft mbH, Wickenhäuser & Egger AG, Wikingerhof GmbH & Co. KG, Hans-Hermann Geiling (Hotel Präsident), Karl Herfurtner (Hotel Stadt München e.K.)
Questions referred
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1. |
Do wide and narrow parity clauses constitute an ancillary restriction in the context of Article 101(1) TFEU? |
|
2. |
If Regulation (EU) No 330/2010 (1) applies, how should the relevant market be defined when transactions are mediated by an online travel agency platform (OTA) on which accommodation establishments can offer rooms and get in touch with travellers who can book a room through the platform? |
(1) Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ 2010 L 102, p. 1).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/18 |
Request for a preliminary ruling from the Sąd Rejonowy Katowice — Zachód w Katowicach (Poland) lodged on 28 April 2023 — Skarb Państwa — Dyrektor Okręgowego Urzędu Miar w K. v Z. sp.j.
(Case C-279/23, Skarb Państwa)
(2023/C 286/21)
Language of the case: Polish
Referring court
Sąd Rejonowy Katowice — Zachód w Katowicach
Parties to the main proceedings
Applicant: Skarb Państwa — Dyrektor Okręgowego Urzędu Miar w K.
Defendant: Z. sp.j.
Question referred
Does Article 6(1) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (1) preclude national legislation under which a national court may dismiss an action for compensation for the recovery costs referred to in that provision on the ground that the debtor’s delay in payment was not significant or on the ground that the amount which the debtor was late in paying was small?
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/18 |
Request for a preliminary ruling from the Arbeitsgericht Mainz (Germany) lodged on 2 May 2023 — TC v Firma Haus Jacobus Alten- und Altenpflegeheim gGmbH
(Case C-284/23, Haus Jacobus)
(2023/C 286/22)
Language of the case: German
Referring court
Arbeitsgericht Mainz
Parties to the main proceedings
Applicant: TC
Defendant: Firma Haus Jacobus Alten- und Altenpflegeheim gGmbH
Question referred
The Court of Justice of the European Union is requested under Article 267 TFEU to give a preliminary ruling on the question whether the German national provisions of Paragraphs 4 and 5 of the Kündigungsschutzgesetz (Law on protection against dismissal), according to which a woman who, as a pregnant woman, enjoys special protection against dismissal must also mandatorily bring an action within the time limits laid down in those provisions in order to retain that protection, are compatible with Directive 92/85/EEC. (1)
(1) Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/19 |
Request for a preliminary ruling from the Curtea de Apel Brașov (Romania) lodged on 3 May 2023 — Asociația Crescătorilor de Vaci ‘Bălțată Românească’ Tip Simmental v Genetica din Transilvania Cooperativă Agricolă and Agenția Națională pentru Zootehnie ‘Prof. dr. G.K. Constantinescu’
(Case C-286/23, Asociația Crescătorilor de Vaci ‘Bălțată Românească’ Tip Simmental)
(2023/C 286/23)
Language of the case: Romanian
Referring court
Curtea de Apel Brașov
Parties to the main proceedings
Applicant: Asociația Crescătorilor de Vaci ‘Bălțată Românească’ Tip Simmental
Defendants: Genetica din Transilvania Cooperativă Agricolă and Agenția Națională pentru Zootehnie ‘Prof. dr. G.K. Constantinescu’
Questions referred
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1. |
Should Article 4(3)(b) of Regulation (EU) 2016/1012, (1) read in conjunction with point A(4) of Part 1 of Annex I to that regulation, as well as recital 24 thereof, be interpreted as meaning that a breed society may be recognised even if its intention is merely to attract breeders who are already entered in another approved breeding programme of another society, by signing applications or undertakings to that effect, or is it necessary that, on the date that the application for recognition is submitted, those breeders actually form part of the portfolio of the society requesting recognition? |
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2. |
Should Article 13 of Regulation (EU) 2016/1012 and point B(2)(a) of Part 1 of Annex I to [that regulation], read in conjunction with recital 24 thereof, be interpreted as meaning that breeders are free to choose the programmes for the improvement of the breed in which to enter their purebred breeding animals and, if so, may that freedom be restricted by the need to avoid prejudicing or compromising a breeding programme in which those breeders are already participating, as a result of those breeders transferring or undertaking to transfer to another breeding programme which is yet to be approved? |
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3. |
Should Article 10(1) of Regulation (EU) 2016/1012, read in conjunction with recital 21 thereof, be interpreted as meaning that, when one of the conditions described in points (a) to (c) of Article 10(1) of that regulation is satisfied, the competent authority which has recognised the breed society is obliged to refuse to approve a breeding programme that would compromise another breeding programme as regards the aspects referred to in [that article], or does the use of the expression ‘… may refuse …’ mean that the authority is afforded a margin of discretion in that regard? |
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4. |
Should Articles 8 and 10 of Regulation (EU) 2016/1012, read in conjunction with recital 21 thereof, be interpreted as meaning that, where a breeding programme whose main objective is the improvement of the breed is already being implemented in a Member State, it is permissible for a new breeding programme to be approved in the same State (the same geographical area) for the same breed, the main objective of which is also the improvement of the breed, as part of which breeding animals participating in the breeding programme already being implemented may be selected? |
(1) Regulation (EU) 2016/1012 of the European Parliament and of the Council of 8 June 2016 on zootechnical and genealogical conditions for the breeding, trade in and entry into the Union of purebred breeding animals, hybrid breeding pigs and the germinal products thereof and amending Regulation (EU) No 652/2014, Council Directives 89/608/EEC and 90/425/EEC and repealing certain acts in the area of animal breeding (‘Animal Breeding Regulation’) (OJ 2016 L 171, p. 66).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/20 |
Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 9 May 2023 — ENGIE Deutschland GmbH v Landesregulierungsbehörde beim Sächsischen Staatsministerium für Wirtschaft, Arbeit und Verkehr
(Case C-293/23, ENGIE Deutschland)
(2023/C 286/24)
Language of the case: German
Referring court
Bundesgerichtshof
Parties to the main proceedings
Applicant: ENGIE Deutschland GmbH
Defendant: Landesregulierungsbehörde beim Sächsischen Staatsministerium für Wirtschaft, Arbeit und Verkehr
Other parties to the proceedings: Zwickauer Energieversorgung GmbH, Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen
Question referred
Do Article 2(28) and (29) and Article 30 et seq. of Directive 2019/944 (1) preclude a provision such as Paragraph 3(24a) in conjunction with Paragraph 3(16) of the Gesetz über die Elektrizitäts- und Gasversorgung (Law on electricity and gas supply (; ‘the EnWG’), according to which the operator of an energy facility for the supply of energy is not subject to the obligations of a distribution system operator if it constructs and operates the energy facility instead of the existing distribution system in order to supply, by means of electricity generated in a combined heat and power plant, several blocks of flats with up to 200 rented residential units and with an annual quantity of transmitted energy of up to 1 000 MWh, with the costs of the construction and operation of the energy facility being borne by the end consumers (tenants) as part of a standard monthly basic fee payable for the heat supplied and the operator sells the electricity generated to the tenants?
(1) Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU (OJ 2019 L 158, p. 125).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/20 |
Request for a preliminary ruling from the Bayerischer Anwaltsgerichtshof (Germany) lodged on 9 May 2023 — Halmer Rechtsanwaltsgesellschaft UG v Rechtsanwaltskammer München
(Case C-295/23, Halmer Rechtsanwaltsgesellschaft)
(2023/C 286/25)
Language of the case: German
Referring court
Bayerischer Anwaltsgerichtshof
Parties to the main proceedings
Applicant: Halmer Rechtsanwaltsgesellschaft UG
Defendant: Rechtsanwaltskammer München
Joined parties: SIVE Beratung und Beteiligung GmbH, Dr Daniel Halmer, Rechtsanwalt
Questions referred
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1. |
Does it constitute an unlawful restriction of the right to free movement of capital under Article 63(1) TFEU if, under the laws of a Member State, the admission to practise law held by a law company must be withdrawn where |
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1.1 |
a share in the law company is transferred to a person who does not satisfy the special professional requirements governing the acquisition of a share under the law of the Member State? Under those provisions, a share in a law company may be acquired only by a lawyer or other member of a bar association, a patent attorney, tax consultant, tax representative, auditor or certified accountant, a member of a legal profession from another State who is permitted to provide legal advice in Germany, or a patent attorney, tax consultant, tax representative, auditor or certified accountant of another State who is authorised to carry on that activity in Germany or a doctor or pharmacist; |
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1.2 |
a partner satisfies the special requirements set out in point 2.1.1., but is not professionally active in the law company? |
|
1.3 |
because of the transfer of one or more shares or voting rights, the majority thereof are no longer held by lawyers? |
|
2. |
Does it constitute an unlawful restriction of the right to free movement of capital under Article 63(1) TFEU where a partner who is not entitled to practise a profession in accordance with point 2.1.1. does not have a voting right, even though the company’s articles of association contain clauses, in order to protect the independence of legal professionals and of the company’s legal activities, under which it is ensured that the company is represented as managing directors or authorised officers only by lawyers, partners and the partners meeting are prohibited from influencing the management board through instructions or indirectly through the threat of disadvantages, partners’ resolutions in contravention of those rules are rendered ineffective and the obligation of legal confidentiality is extended to partners and persons acting on their behalf? |
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3. |
Do the restrictions referred to in points 2.1. and 2.2. satisfy the conditions laid down in Article 15(3)(a) to (c) of Directive 2006/123/EC (1) (‘the Services Directive’), for permitted interferences with the freedom to provide services? |
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4. |
In the event that, in the view of the Court of Justice, the applicant’s right to free movement of capital (points 2.1. and 2.2.) is not affected and there is no infringement of the Services Directive (point 2.3): Is the right of the first joined party (S-GmbH) to freedom of establishment under Article 49 TFEU infringed by the restrictions referred to in points 2.1. and 2.2.? |
(1) Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/21 |
Request for a preliminary ruling from the Nederlandstalige Ondernemingsrechtbank Brussel (Belgium) lodged on 8 May 2023 — Inter IKEA Systems BV v Algemeen Vlaams Belang VZW and Others
(Case C-298/23, Inter IKEA Systems)
(2023/C 286/26)
Language of the case: Dutch
Referring court
Nederlandstalige Ondernemingsrechtbank Brussel
Parties to the main proceedings
Applicant: Inter IKEA Systems BV
Defendants: Algemeen Vlaams Belang VZW, S, T, U and V, Vrijheidsfonds VZW
Questions referred
Can freedom of expression, including the freedom to express political opinions and political parody, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 11 of the Charter of Fundamental Rights of the European Union, constitute ‘due cause’ for using a sign identical or similar to a well-known trade mark within the meaning of Article 9(2)(c) of Regulation (EU) 2017/1001 (1) of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark as well as Article 10(2)(c) and Article 10(6) of Directive (EU) 2015/2436 (2) of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks?
If so, what are the criteria to be taken into account by the national court in assessing the balance between those fundamental rights, and the importance to be attached to each of them?
In particular, can the national court take into account the following criteria, and/or are there additional criteria:
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the extent to which the expression has a commercial character or purpose |
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the extent to which competitive motives are at play between parties; |
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the extent to which the expression has a public interest, is socially relevant or opens a debate; |
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the relationship between the above criteria; |
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the degree of reputation of the trade mark invoked; |
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the extent of the infringing use, its intensity and systematic nature and the extent of its distribution, by territory, time and volume, also taking into account the extent to which this is proportionate to the message that the expression is intended to convey; |
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the extent to which the expression, and circumstances accompanying that expression, such as the name of the expression and its promotion, are detrimental to the reputation, distinctive character and image of the trade marks invoked (the ‘advertising function’ |
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the extent to which the expression exhibits its own original contribution and the extent to which an attempt has been made to avoid confusion or association with the trade marks invoked, or the impression that there is a commercial or other connection between the expression and the trade mark proprietor (the ‘origin function’), also taking into account the manner in which the trade mark proprietor has built up a certain image and reputation in advertising and communication? |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/22 |
Request for a preliminary ruling from the Sąd Rejonowy Katowice — Wschód w Katowicach (Poland) lodged on 10 May 2023 — M. J. v C. J.
(Case C-302/23, Piekiewicz (1))
(2023/C 286/27)
Language of the case: Polish
Referring court
Sąd Rejonowy Katowice — Wschód w Katowicach
Parties to the main proceedings
Applicant: M. J.
Defendant: C. J.
Question referred
Must Article 2(1) and (3) of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, (2) in conjunction with Article 25(1) and (2) thereof, and recitals 12, 13, 18, 21, 22 and 49 thereof, be interpreted as meaning that a court of a Member State is obliged to accept a procedural document lodged with that court and signed with an electronic signature, as referred to in Article 3(10) of the regulation, where the national law of the Member State does not provide for any possibility of lodging procedural documents with the court by means of an electronic signature other than through an ICT system?
(1) This case has been given a fictitious name which does not correspond to the real name of either of the parties to the proceedings.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/23 |
Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Latvia) lodged on 31 May 2023 — Pārtikas drošības, dzīvnieku veselības un vides zinātniskais institūts BIOR v Valsts ieņēmumu dienests
(Case C-344/23, BIOR)
(2023/C 286/28)
Language of the case: Latvian
Referring court
Augstākā tiesa (Senāts)
Parties to the main proceedings
Applicant at first instance, respondent in cassation: Pārtikas drošības, dzīvnieku veselības un vides zinātniskais institūts BIOR
Defendant at first instance, appellant in cassation: Valsts ieņēmumu dienests
Questions referred
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1. |
Must the expression ‘scientific instrument or apparatus’ in Article 46(a) of Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty, (1) be interpreted as meaning that it may include objects which, by virtue of their particular technical structure and functioning, themselves serve directly as a means of scientific research? |
|
2. |
Must the combined nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (2) as amended by Commission Implementing Regulation (EU) 2017/1925 of 12 October 2017 (3) be interpreted as meaning that subheading 3926 90 92 90 of the combined nomenclature may include fish tags made of plastic? |
(3) Commission Implementing Regulation (EU) 2017/1925 of 12 October 2017 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2017 L 282, p. 1).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/24 |
Order of the President of the Court of 10 April 2023 (request for a preliminary ruling from the Tribunalul Bihor — Romania) — F.O.L. v Tribunalul Cluj with the participation of Consiliul Naţional pentru Combaterea Discriminării
(Case C-643/21, (1) Tribunalul Cluj)
(2023/C 286/29)
Language of the case: Romanian
The President of the Court has ordered that the case be removed from the register.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/24 |
Order of the President of the Court of 10 April 2023 (request for a preliminary ruling from the Tribunalul Bihor — Romania) — C.C.C., C.R.R., U.D.M.v Tribunalul Cluj, Tribunalul Satu Mare, Tribunalul Bucureşti, Tribunalul Bistriţa Năsăud, Tribunalul Maramureş, Tribunalul Sibiu, with the participation of Consiliul Naţional pentru Combaterea Discriminării
(Case C-645/21, (1) Tribunalul Cluj and Others)
(2023/C 286/30)
Language of the case: Romanian
The President of the Court has ordered that the case be removed from the register.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/24 |
Order of the President of the Court of 18 April 2023 (request for a preliminary ruling from the Oberlandesgericht Koblenz — Germany) — BZ v DKV Deutsche Krankenversicherung AG
(Case C-672/22, (1) DKV)
(2023/C 286/31)
Language of the case: German
The President of the Court has ordered that the case be removed from the register.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/24 |
Order of the President of the Court of 24 April 2023 (request for a preliminary ruling from the Amtsgericht Steinfurt — Germany) — UE v Deutsche Lufthansa AG
(Case C-78/23, (1) Deutsche Lufthansa)
(2023/C 286/32)
Language of the case: German
The President of the Court has ordered that the case be removed from the register.
General Court
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/25 |
Judgment of the General Court of 28 June 2023 — CEDC International v EUIPO — Underberg (Shape of a blade of grass in a bottle)
(Case T-145/22) (1)
(EU trade mark - Opposition proceedings - Application for a three-dimensional EU trade mark - Shape of a blade of grass in a bottle - Earlier national trade marks - Relative ground for refusal - Article 8(3) of Regulation (EC) No 40/94 (now Article 8(3) of Regulation (EU) 2017/1001) - Concept of ‘agent’ or ‘representative’ - Requirement for a direct contractual agreement)
(2023/C 286/33)
Language of the case: English
Parties
Applicant: CEDC International sp. z o.o. (Oborniki Wielkopolskie, Poland) (represented by: M. Fijałkowski, lawyer)
Defendant: European Union Intellectual Property Office (represented by: D. Stoyanova-Valchanova and V. Ruzek, acting as Agents)
Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Underberg AG (Dietlikon, Switzerland) (represented by: A. Renck and C. Stöber, lawyers)
Re:
By its action under Article 263 TFEU, the applicant seeks the partial annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 December 2021 (Case R 1954/2020-5).
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders CEDC International sp. z o.o. to pay the costs. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/25 |
Judgment of the General Court of 28 June 2023 — Hofmeir Magnetics v EUIPO — Healthfactories (Hofmag)
(Case T-452/22) (1)
(EU trade mark - Opposition proceedings - Application for EU word mark Hofmag - Earlier non-registered word mark HOFMAG - Relative ground for refusal - No use in the course of trade of a sign of more than mere local significance - Article 8(4) and Article 60(1)(c) of Regulation (EU) 2017/1001)
(2023/C 286/34)
Language of the case: English
Parties
Applicant: Hofmeir Magnetics Ltd (Witney, United Kingdom) (represented by: S. Baur, lawyer)
Defendant: European Union Intellectual Property Office (represented by: E. Markakis, acting as Agent)
Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Healthfactories GmbH (Saaldorf-Surheim, Germany) (represented by C. Vischer, lawyer)
Re:
By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 May 2022 (Case R 1367/2021-5).
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders Hofmeir Magnetics Ltd to bear its own costs and to pay those incurred by Healthfactories GmbH; |
|
3. |
Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/26 |
Judgment of the General Court of 28 June 2023 — UGA Nutraceuticals v EUIPO — BASF (OMEGOR)
(Case T-495/22) (1)
(EU trade mark - Opposition proceedings - International registration designating the European Union - Word mark OMEGOR - Earlier EU figurative mark OMACOR - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
(2023/C 286/35)
Language of the case: English
Parties
Applicant: UGA Nutraceuticals Srl (Gubbio, Italy) (represented by: M. Riva, J. Graffer and A. Ottolini, lawyers)
Defendant: European Union Intellectual Property Office (represented by: M. Chylińska and T. Frydendahl, acting as Agents)
Other party to the proceedings before the Board of Appeal of EUIPO: BASF AS (Oslo, Norway)
Re:
By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 June 2022 (Case R 1168/2021-4).
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders UGA Nutraceuticals Srl and the European Union Intellectual Property Office (EUIPO) to bear their own costs. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/27 |
Judgment of the General Court of 28 June 2023 — UGA Nutraceuticals v EUIPO — BASF (OMEGOR VITALITY)
(Case T-496/22) (1)
(EU trade mark - Opposition proceedings - Application for the EU word mark OMEGOR VITALITY - Earlier EU figurative mark OMACOR - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
(2023/C 286/36)
Language of the case: English
Parties
Applicant: UGA Nutraceuticals Srl (Gubbio, Italy) (represented by: M. Riva, J. Graffer and A. Ottolini, lawyers)
Defendant: European Union Intellectual Property Office (represented by: M. Chylińska and T. Frydendahl, acting as Agents)
Other party to the proceedings before the Board of Appeal of EUIPO: BASF AS (Oslo, Norway)
Re:
By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 June 2022 (Case R 1200/2021-4).
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders UGA Nutraceuticals Srl and the European Union Intellectual Property Office (EUIPO) to bear their own costs. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/27 |
Judgment of the General Court of 28 June 2023 — C. & S. v EUIPO — Scuderia AlphaTauri (CS jeans your best fashion partner)
(Case T-645/22) (1)
(EU trade mark - Revocation proceedings - EU figurative mark CS jeans your best fashion partner - Lack of genuine use of the mark - Nature of use - Lack of use in connection with the goods in respect of which the mark is registered - Article 58(1)(a) of Regulation (EU) 2017/1001)
(2023/C 286/37)
Language of the case: English
Parties
Applicant: C. & S. Srl (Umbertide, Italy) (represented by: E. Montelione, lawyer)
Defendant: European Union Intellectual Property Office (represented by: T. Frydendahl, acting as Agent)
Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Scuderia AlphaTauri SpA (Faenza, Italy) (represented by: A. Renck and S. Petivlasova, lawyers)
Re:
By its action under Article 263 TFEU, the applicant seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 August 2022 (Case R 182/2022-1)
Operative part of the judgment
The Court:
|
1. |
Dismisses the action; |
|
2. |
Orders C. & S. Srl to bear its own costs and to pay those incurred by Scuderia AlphaTauri SpA; |
|
3. |
Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/28 |
Action brought on 10 May 2023 — Maud Tea & Seed and Fresh Produce Consortium of Kenya v Commission
(Case T-247/23)
(2023/C 286/38)
Language of the case: English
Parties
Applicants: Maud Tea & Seed Co. Ltd (Kolkata, India), Fresh Produce Consortium of Kenya Ltd (Nairobi, Kenya) (represented by: D. Waelbroeck and I. Antypas, lawyers)
Defendant: European Commission
Form of order sought
The applicants claim that the Court should:
|
— |
declare the application admissible and well founded; |
|
— |
annul the Contested Regulation (1) in its entirety, or alternatively, to annul the Contested Regulation in so far as it lowers the maximum residue level for clothianidin and thiamethoxam in or on teas and fresh fruit and vegetables; |
|
— |
order the Commission to pay all costs and expenses. |
Pleas in law and main arguments
In support of the action, the applicant relies on five pleas in law.
|
1. |
First plea in law, alleging that the Contested Regulation constitutes an exercise of extraterritorial jurisdiction by the Commission which exceeds the powers delegated to the Commission under the MRL Regulation (2) and infringes upon the EU Treaties as well as general rules of public international law. |
|
2. |
Second plea in law, alleging that the Contested Regulation manifestly exceeds the subject matter scope of the powers delegated to the Commission under the MRL Regulation; subsidiarily, if the MRL Regulation is found to be a sufficient legal basis for the Contested Regulation, the MRL Regulation itself is ultra vires as it exceeds the permissible scope of delegated powers under the EU Treaties. |
|
3. |
Third plea in law, alleging that the Contested Regulation violates several provisions of the MRL Regulation. |
|
4. |
Fourth plea in law, alleging that the Contested Regulation violates the principle of proportionality. |
|
5. |
Fifth plea in law, alleging that the Contested Regulation violates the principles of legal certainty and transparency. |
(1) Commission Regulation (EU) 2023/334 of 2 February 2023 amending Annexes II and V to Regulation (EC) No 396/2005 of the European Parliament and of the Council as regards maximum residue levels for clothianidin and thiamethoxam in or on certain products, OJ 2023, L 47, p. 29.
(2) Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC (OJ 2005 L 70, p. 1).
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/29 |
Action brought on 29 May 2023 — Tsakiris v EUIPO — Tsakiris-Protypos Viomichania Trofimon-Snacks-AVEE (Le Petit Déjeuner TSAKIRIS FAMILY)
(Case T-303/23)
(2023/C 286/39)
Language in which the application was lodged: Greek
Parties
Applicant: Tsakiris AE Paragogis & Emporias Trofimon (Thessaloniki, Greece) (represented by: A. Papaspyropoulos, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Tsakiris-Protypos Viomichania Trofimon-Snacks-AVEE (Atalanti, Greece)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Applicant
Trade mark at issue: EU figurative mark Le Petit Déjeuner TSAKIRIS FAMILY
Proceedings before EUIPO: Cancellation proceedings
Contested decision: Decision of the First Board of Appeal of EUIPO of 16 March 2023 in Case R 1012/2020-1
Form of order sought
The applicant claims that the Court should:
|
— |
annul the contested decision; |
|
— |
order EUIPO to pay the costs. |
Plea in law
|
— |
Infringement of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/29 |
Action brought on 23 May 2023 — Fest v Parliament
(Case T-305/23)
(2023/C 286/40)
Language of the case: German
Parties
Applicant: Nicolaus Fest (Zagreb, Croatia) (represented by: G. Seidel, lawyer)
Defendant: European Parliament
Form of order sought
The applicant claims that the Court should:
|
— |
declare that the decision of the European Parliament of 14 March 2023 (P9_TA(2023) 0061) on the request for waiver of the immunity of Nicolaus Fest [2022/2056 (IMM)] approving the report (A9-0055/2023) drafted by Ilana Cicurel is void. |
Pleas in law and main arguments
In support of the action, the applicant relies on two pleas in law.
|
1. |
Infringement of Article 8 of the Protocol on the Immunities and Privileges of Members of Parliament (1) The applicant submits that the statements of which he is accused form part of a parliamentary debate on the protection of children which took place in the plenary session of the European Parliament and fall within the general interest and freedom of expression enjoyed by Members of the European Parliament. The tweet of which he is accused was a response to a tweet by a former member of the Deutscher Bundestag (Lower House of the German Federal Parliament), whose tweet directly addressed an accusation made by the applicant in a parliamentary debate. The applicant considers that the European Parliament should not waive his immunity on those grounds. |
|
2. |
Existence of a fumus persecutionis The applicant suspects that the Berlin Public Prosecutor’s Office, through which the prosecution is being conducted, is taking action in this case only in order to harm a political opponent or to take revenge for an embarrassment in earlier proceedings. |
(1) Protocol (No 7) on the privileges and immunities of the European Union (OJ 2012 C 326, p. 266).
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/30 |
Action brought on 26 May 2023 — British American Tobacco Polska Trading v Commission
(Case T-311/23)
(2023/C 286/41)
Language of the case: English
Parties
Applicant: British American Tobacco Polska Trading sp. z o.o. (Warsaw, Poland) (represented by: L. Van den Hende, M. Schonberg and J. Penz-Evren, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
|
— |
annul the European Commission’s decision of 20 March 2023 impliedly refusing the applicant’s requests for access to documents in request EASE 2022/6296, made pursuant to Article 8(3) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents; (1) |
|
— |
order that the defendant pay the applicant’s costs in these proceedings. |
Pleas in law and main arguments
In support of the action, the applicant relies on two pleas in law.
|
1. |
First plea in law, alleging that the contested measure infringes Articles 2(1) and 2(3) of Regulation 1049/2001 on the ground that the European Commission failed to provide access to all documents falling within the scope of the applicant’s requests, namely:
|
|
2. |
Second plea in law, alleging failure to state reasons, as required by Article 296 TFEU. |
(1) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
(2) Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/31 |
Action brought on 8 June 2023 — Net Technologies Finland v Commission
(Case T-319/23)
(2023/C 286/42)
Language of the case: English
Parties
Applicant: Net Technologies Finland Oy (Helsinki, Finland) (represented by: S. Pappas and A. Pappas, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
|
— |
annul the decision of the European Commission adopted on the basis of Article 299 TFEU on 27.03.2023 (and notified to the applicant on 29.03.2023) concerning the recovery of EUR 188 477,27 from Net Technologies Finland Oy; and, |
|
— |
order the defendant to bear its costs as well as the applicant’s costs for the current proceedings. |
Pleas in law and main arguments
With the present application for annulment, it is argued that the contested decision is illegal because its motivation is unlawful. And its motivation is unlawful because it is based on the debit notes of 7 May 2020 and the findings of the final audit report which are unlawful. To that end, two pleas of annulment are put forward.
|
1. |
The first plea of annulment is divided in two parts:
|
|
2. |
In the context of the second plea of annulment it is argued that, assuming that the criteria of the FP7 Guide were applicable, they were applied incorrectly. In other words, the findings of the final audit report and the debit notes adopted on its basis are vitiated by errors of assessment. By relying on those elements, the contested decision is also vitiated by the same errors of assessment and infringes the obligation, enshrined in Article 41 of the Charter of fundamental rights, to examine carefully all elements of the case. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/32 |
Action brought on 9 June 2023 — Biogen Netherlands v Commission
(Case T-327/23)
(2023/C 286/43)
Language of the case: English
Parties
Applicant: Biogen Netherlands BV (Amsterdam, Netherlands) (represented by: C. Schoonderbeek and B. Jong, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
|
— |
annul the decision of the European Commission, the Defendant, of 15 February 2023 (C(2023)1211 (final)) granting marketing authorisation under Regulation (EC) No 726/2004 (1) for ‘Dimethyl Fumarate Accord — dimethyl fumarate’, a medicinal product for human use; and, |
|
— |
order the Commission to pay the costs. |
Plea in law and main arguments
In support of the action, the applicant relies on a single plea in law, alleging incorrect interpretation of the concept of the global marketing authorisation as laid down in Article 6(1), second subparagraph, of the Directive (2) and application of this concept to the medicinal products Tecfidera and Fumaderm leading to the incorrect conclusion in the Contested Decision that, at the relevant time, regulatory data protection for Tecfidera had already expired.
(1) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004, L 136, p. 1).
(2) Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001, L 311, p. 67).
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/32 |
Action brought on 15 June 2023 — Czech Republic v Commission
(Case T-329/23)
(2023/C 286/44)
Language of the case: Czech
Parties
Applicant: Czech Republic (represented by: M. Smolek, J. Vláčil and L. Halajová, acting as Agents)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
|
— |
Order the European Union, represented by the European Commission, to restore to the Czech Republic the unjust enrichment in a total amount corresponding to the sum of CZK 61 111 077,21, which was for no legal reason conditionally paid into the European Commission’s account; |
|
— |
order the European Union, represented by the European Commission, to pay the costs. |
Pleas in law and main arguments
In support of the action, the applicant relies on the following pleas in law:
The dispute concerns imports of selected consignments of textiles, footwear and sunglasses in November and December 2011 under the Discount action concerning undervalued imports from Asia. The disputed amount corresponds to the difference between the customs duties collected on the basis of the declared customs value of the goods and the customs duties which, in the view of the European Commission, should have been levied on the basis of the statistical value of goods classified under the same TARIC code, after the deduction of recovery costs. The European Commission first requested reimbursement of the difference on the basis of 50 % of the statistical value, and therefore on 15 June 2018, an amount of CZK 28 307 935,78 was paid conditionally into the European Commission’s account in order to avoid an increase in default interest. After several years, the European Commission requested reimbursement of the difference to 100 % of the statistical value and therefore on 20 December 2022 the amount of CZK 33 444 448,24 was, again conditionally, paid into the European Commission’s account. In the meantime, the European Commission has allowed the Czech Republic to recover, by offsetting, the sum of CZK 641 306,81 for several unduly included consignments.
By that conduct, the European Commission has rendered the European Union non-contractually liable. There was no legal reason for payment of the sums concerned into the European Commission’s account. The Czech Republic complied with all the obligations arising under EU law by carrying out, for all the imports concerned, a thorough inspection of the goods and the related documentation and, following the findings of those inspections, by determining and collecting customs duties on the basis of the customs value declared. It also maintains that, even if the declared customs value were called into question, the customs duties could not be levied on the basis of a statistical value. The customs value should have been determined by the procedure under Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, and Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, that is to say, primarily according to the customs value of the same or similar goods. In any event, the Commission applied an incorrect exchange rate of EUR to CZK for the imports made in November 2011, which wrongly overestimated the amount claimed.
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/33 |
Action brought on 16 June 2023 — Importaciones Origen Pacífico v EUIPO — Molinos Nacionales (Juana de Origen)
(Case T-331/23)
(2023/C 286/45)
Language in which the application was lodged: Spanish
Parties
Applicant: Importaciones Origen Pacífico SL (Valencia, Spain) (represented by: Á. Pérez Lluna, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Molinos Nacionales C.A. (Puerto Cabello, Venezuela)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Applicant
Trade mark at issue: EU figurative mark Juana de Origen — EU trade mark No 16 517 948
Proceedings before EUIPO: Invalidity proceedings
Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 24 March 2023 in Case R 818/2022-5
Form of order sought
The applicant claims that the Court should:
|
— |
annul the contested decision; |
|
— |
order EUIPO to pay the costs of the present proceedings and order the other party to pay the costs incurred in the invalidity proceedings and appeal before EUIPO. |
Pleas in law
|
— |
Expiry of the trade marks on which the application for a declaration of invalidity is based. |
|
— |
No genuine use of the trade marks on which the application for a declaration of invalidity is based, in accordance with Article 64(2) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
|
— |
No evidence of bad faith on the part of the applicant, pursuant to Article 59(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/34 |
Action brought on 19 June 2023 — Azaconsa v EUIPO — Lugar da Veiga (SHIP)
(Case T-332/23)
(2023/C 286/46)
Language in which the application was lodged: Spanish
Parties
Applicant: Azaconsa SL (Alicante, Spain) (represented by: L. Broschat García and L. Polo Flores, lawyers)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Lugar da Veiga SLL (Lugo, Spain)
Details of the proceedings before EUIPO
Applicant for the trade mark at issue: Applicant
Trade mark at issue: Application for EU figurative mark SHIP — Application for registration No 18 124 707
Proceedings before EUIPO: Opposition proceedings
Contested decision: Decision of the First Board of Appeal of EUIPO of 18 April 2023 in Case R 1465/2022-1
Form of order sought
The applicant claims that the Court should:
|
— |
annul the contested decision; |
|
— |
allow the registration of the mark at issue in respect of Class 35; |
|
— |
order any party opposing the present proceedings to pay the costs. |
Plea in law
Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council.
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/35 |
Action brought on 16 June 2023 — Nehera and Others v EUIPO — Zdút (nehera)
(Case T-334/23)
(2023/C 286/47)
Language in which the application was lodged: English
Parties
Applicants: Isabel Nehera (Sutton, Ontario, Canada), Natacha Sehnal (Montferrier-sur-Lez, France), Jean-Henri Nehera (Burnaby, British Columbia, Canada) (represented by: W. Woll, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Ladislav Zdút (Bratislava, Slovakia)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal
Trade mark at issue: European Union figurative mark nehera — European Union trade mark No 11 794 112
Procedure before EUIPO: Cancellation proceedings
Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 17 April 2023 in Case R 1216/2020-4
Form of order sought
The applicants claim that the Court should:
|
— |
annul the contested decision; |
|
— |
order EUIPO to bear its own costs and those incurred by the other party to the proceedings before the Board of Appeal, including the necessary costs incurred in the appeal proceedings before the Board of Appeal; |
|
— |
order EUIPO to pay, in addition to its own costs, the costs incurred by the applicants. |
Pleas in law
|
— |
Infringement of the right to a fair trial; |
|
— |
Infringement of Article 52(1)(b) of Council Regulation (EC) No 207/2009. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/35 |
Action brought on 17 June 2023 — Nehera and Others v EUIPO — Zdút (NEHERA)
(Case T-335/23)
(2023/C 286/48)
Language in which the application was lodged: English
Parties
Applicants: Isabel Nehera (Sutton, Ontario, Canada), Natacha Sehnal (Montferrier-sur-Lez, France), Jean-Henri Nehera (Burnaby, British Columbia, Canada) (represented by: W. Woll, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Ladislav Zdút (Bratislava, Slovakia)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal
Trade mark at issue: European Union figurative mark NEHERA — European Union trade mark No 12 812 319
Procedure before EUIPO: Cancellation proceedings
Contested decision: Decision of the Forth Board of Appeal of EUIPO of 17 April 2023 in Case R 1217/2020-4
Form of order sought
The applicants claim that the Court should:
|
— |
annul the contested decision; |
|
— |
order EUIPO to bear its own costs and those incurred by the other party to the proceedings before the Board of Appeal, including the necessary costs incurred in the appeal proceedings before the Board of Appeal; |
|
— |
order EUIPO to pay, in addition to its own costs, the costs incurred by the applicants. |
Pleas in law
|
— |
Infringement of the right to a fair trial; |
|
— |
Infringement of Article 52(1)(b) of Council Regulation (EC) No 207/2009. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/36 |
Action brought on 17 June 2023 — Nehera and Others v EUIPO — Zdút (NEHERA PRAGUE)
(Case T-336/23)
(2023/C 286/49)
Language in which the application was lodged: English
Parties
Applicants: Isabel Nehera (Sutton, Ontario, Canada), Natacha Sehnal (Montferrier-sur-Lez, France), Jean-Henri Nehera (Burnaby, British Columbia, Canada) (represented by: W. Woll, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Ladislav Zdút (Bratislava, Slovakia)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal
Trade mark at issue: European Union word mark NEHERA PRAGUE — European Union trade mark No 12 671 681
Procedure before EUIPO: Cancellation proceedings
Contested decision: Decision of the Forth Board of Appeal of EUIPO of 17 April 2023 in Case R 1218/2020-4
Form of order sought
The applicants claim that the Court should:
|
— |
annul the contested decision; |
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— |
order EUIPO to bear its own costs and those incurred by the other party to the proceedings before the Board of Appeal, including the necessary costs incurred in the appeal proceedings before the Board of Appeal; |
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— |
order EUIPO to pay, in addition to its own costs, the costs incurred by the applicants. |
Pleas in law
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— |
Infringement of the right to a fair trial; |
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— |
Infringement of Article 52(1)(b) of Council Regulation (EC) No 207/2009. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/37 |
Action brought on 17 June 2023 — Nehera and Others v EUIPO — Zdút (NEHERA)
(Case T-337/23)
(2023/C 286/50)
Language in which the application was lodged: English
Parties
Applicants: Isabel Nehera (Sutton, Ontario, Canada), Natacha Sehnal (Montferrier-sur-Lez, France), Jean-Henri Nehera (Burnaby, British Columbia, Canada) (represented by: W. Woll, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Ladislav Zdút (Bratislava, Slovakia)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal
Trade mark at issue: European Union figurative mark NEHERA — European Union trade mark No 16 799 678
Procedure before EUIPO: Cancellation proceedings
Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 17 April 2023 in Case R 1219/2020-4
Form of order sought
The applicants claim that the Court should:
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— |
annul the contested decision; |
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— |
order EUIPO to bear its own costs and those incurred by the other party to the proceedings before the Board of Appeal, including the necessary costs incurred in the appeal proceedings before the Board of Appeal; |
|
— |
order EUIPO to pay, in addition to its own costs, the costs incurred by the applicants. |
Pleas in law
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— |
Infringement of the right to a fair trial; |
|
— |
Infringement of Article 52(1)(b) of Council Regulation (EC) No 207/2009. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/38 |
Action brought on 20 June 2023 — Barry’s Bootcamp v EUIPO — Hummel (Device of two chevrons pointing downwards)
(Case T-340/23)
(2023/C 286/51)
Language in which the application was lodged: English
Parties
Applicant: Barry’s Bootcamp Holdings LLC (Miami, Florida, United States) (represented by: M. Hawkins, T. Dolde and C. Zimmer, lawyers)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Hummel Holding A/S (Aarhus, Denmark)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal
Trade mark at issue: International registration designating the European Union in respect of a figurative mark (Device of two chevrons pointing downward) — International registration designating the European Union No 915 962
Procedure before EUIPO: Cancellation proceedings
Contested decision: Decision of the Second Board of Appeal of EUIPO of 10 March 2023 in Case R 1422/2022-2
Form of order sought
The applicant claims that the Court should:
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— |
annul the contested decision; |
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— |
order the defendant and the other party to the proceedings before the Board of Appeal, should it intervene, to bear the costs of the proceedings. |
Pleas in law
|
— |
Infringement of Article 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council; |
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— |
Infringement of Article 58(1)(a) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/38 |
Action brought on 23 June 2023 — Sergio Rossi v EUIPO — Stefano Ricci (sr 1)
(Case T-344/23)
(2023/C 286/52)
Language in which the application was lodged: Italian
Parties
Applicant: Sergio Rossi SpA (San Mauro Pascoli, Italy) (represented by: C. Sala, lawyer)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Stefano Ricci SpA (Fiesole, Italy)
Details of the proceedings before EUIPO
Proprietor of the trade mark at issue: Applicant
Trade mark at issue: EU figurative mark sr 1 — EU trade mark No 15 861 248
Proceedings before EUIPO: Invalidity proceedings
Contested decision: Decision of the Second Board of Appeal of EUIPO of 2 May 2023 in Case R 89/2021-2
Form of order sought
The applicant claims that the Court should:
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— |
annul the contested decision; |
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— |
order EUIPO and the third-party intervener to pay the costs. |
Pleas in law
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— |
Infringement of Article 41(2) of the Charter of Fundamental Rights of the European Union in the form of a failure on the part of the administration to fulfil its obligation to state reasons for its decisions; |
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— |
Misuse of powers and lack of jurisdiction in assessing distinctive character in relation to the earlier marks, on the part of the Board of Appeal of EUIPO; |
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— |
Failure to state reasons as regards a decisive point in the dispute (infringement of Article 41(2) of the Charter of Fundamental Rights of the European Union) and failure to observe the general principles of EU law in the form of the principle of legality, the principle of equal treatment and the principle of good administration; |
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— |
Infringement of Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council, Article 17(3) of Commission Delegated Regulation 2018/625 and Article 41(2) of the Charter of Fundamental Rights of the European Union, in particular, as regards the assessment of the distinctive nature of national, not EU, trade marks, identification of the relevant public and the subsequent analysis of the similarity of the signs at issue. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/39 |
Action brought on 26 June 2023 — AC Marca Brands v EUIPO — den Ouden (SANITIEN)
(Case T-345/23)
(2023/C 286/53)
Language in which the application was lodged: English
Parties
Applicant: AC Marca Brands, SL (Madrid, Spain) (represented by: D. Pellisé Urquiza and J. C. Quero Navarro, lawyers)
Defendant: European Union Intellectual Property Office (EUIPO)
Other party to the proceedings before the Board of Appeal: Julia den Ouden (Amsterdam, Netherlands)
Details of the proceedings before EUIPO
Applicant of the trade mark at issue: Other party to the proceedings before the Board of Appeal
Trade mark at issue: Application for European Union word mark SANITIEN — Application for registration No 18 384 320
Procedure before EUIPO: Opposition proceedings
Contested decision: Decision of the First Board of Appeal of EUIPO of 19 April 2023 in Case R 1733/2022-1
Form of order sought
The applicant claims that the Court should:
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— |
annul the contested decision; |
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— |
order EUIPO and/or Julia den Ouden to bear the costs of this action and of the opposition and appeal proceedings before EUIPO. |
Plea in law
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— |
Infringement of Article 8(1) and (5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council. |
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/40 |
Action brought on 29 June 2023 — Kern Pharma v Commission
(Case T-351/23)
(2023/C 286/54)
Language of the case: English
Parties
Applicant: Kern Pharma, SL (Barcelona, Spain) (represented by: K. Roox, T. De Meese, J. Stuyck and C. Dumont, lawyers)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
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— |
declare their request for annulment admissible and well-founded; |
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annul Commission Implementing Decision C(2023)3067(final) of 2 May 2023 (published on 4 May 2023) amending the marketing authorisation granted by Decision C(2014)601(final) for ‘Tecfidera — Dimethyl fumarate’, a medicinal product for human use (‘the contested decision’), as well as any later decision, to the extent that they perpetuate and/or replace that decision including any follow-up regulatory actions, in so far as they relate to the applicant; |
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order the Commission to pay the costs of the proceedings. |
Pleas in law and main arguments
In support of the action, the applicant relies on eight pleas in law.
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1. |
First plea in law, alleging failure by the European Commission to observe the time limit for obtaining an extension of market protection as required by Article 14(11) Regulation EC No. 726/2004 of the European Parliament and of the Council. (1) |
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2. |
Second plea in law, alleging that the European Commission committed a manifest error in interpreting and implementing the judgment of 16 March 2023, Commission and Others v Pharmaceutical Works Polpharma (C-438/21 P to C-440/21 P, EU:C:2023:213) and in particular by considering the ad hoc assessment report of 11 November 2021 irrelevant. |
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3. |
Third plea in law, alleging that the European Commission committed a manifest error in basing the contested decision on the wrong scientific facts available at the time of that decision. |
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4. |
Fourth plea in law, invoking a plea of illegality regarding Biogen’s marketing authorisation granted by the Commission Implementing Decision C(2014)601(final) (2) and requesting the annulment of the contested decision as a consequence. |
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5. |
Fifth plea in law, alleging infringement of the applicant’s fundamental rights and in particular, the right to a fair trial, the right of defence, the right to be heard and the right to a legal basis pursuant to Article 47 of the Charter of Fundamental Rights of the European Union. |
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6. |
Sixth plea in law, alleging that the contested decision infringes the applicant’s right to legal certainty by de facto withdrawing the applicant’s unconditionally granted market authorisation, without assessing the illegality of that granted marketing authorisation. |
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7. |
Seventh plea in law, alleging that the contested decision violates the applicant’s legitimate expectations by not taking into account the applicant’s and third party’s rights acquired on the basis of an unconditionally granted market authorisation. |
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8. |
Eighth plea in law, alleging that the contested decision violates the applicant’s right to property, laid down in Article 17 of the Charter of Fundamental Rights of the European Union, and the principle of proportionality. |
(1) Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1).
(2) Commission Implementing Decision C(2014)601(final) of 30 January 2014 granting marketing authorisation under Regulation (EC) No 726/2004 of the European Parliament and of the Council for ‘Tecfidera — Dimethyl fumarate’, a medicinal product for human use.
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14.8.2023 |
EN |
Official Journal of the European Union |
C 286/41 |
Order of the General Court of 27 June 2023 — RT France v Council
(Case T-75/23) (1)
(2023/C 286/55)
Language of the case: French
The President of the First Chamber has ordered that the case be removed from the register.
|
14.8.2023 |
EN |
Official Journal of the European Union |
C 286/41 |
Order of the General Court of 26 June 2023 — RT France v Council
(Case T-169/23) (1)
(2023/C 286/56)
Language of the case: French
The President of the First Chamber has ordered that the case be removed from the register.